R v Stewart - [2007] SASC 167

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v STEWART
[2007] SASC 167
Judgment of The Court of Criminal Appeal
(The Honourable Justice Anderson, The Honourable Justice Layton and The Honourable Justice Kelly)
16 May 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS
APPEAL AND NEW TRIAL - APPEAL -- GENERAL PRINCIPLES - ADMISSION OF FRESH EVIDENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - PROBATION ORDERS AND SUSPENSION OF SENTENCE - DISCRETION OF COURT
Appellant pleaded guilty to one count of indecent assault, two counts of assaulting police and one count of resisting police - indecent assault involved appellant grabbing the victim, a female police officer, from behind - police officer was acting in the course of her duties restraining a crowd - appellant’s finger penetrated the victim - sentencing judge accepted submissions that penetration was unintentional - the victim was traumatised and embarrassed as a result of the indecent assault - compassionate grounds relating to the illness of the appellant’s partner and her subsequent inability to care for their dependents were submitted to the sentencing judge - headsentence discounted by 15 per cent to two years for guilty plea with a non parole period of 12 months - the sentencing judge also took into account the appellant’s partner’s illness - sentence not suspended - on appeal, appellant sought leave to admit fresh evidence - leave granted - fresh evidence consisted of two medical reports and an affidavit relating to the deterioration of appellant’s partner’s health and the need for him to care for her and the appellant’s children - whether sentence should be varied in light of fresh evidence - whether sentence was manifestly excessive - whether trial judge erred in not suspending sentence. Held: by majority appeal dismissed.
Criminal Law Consolidation Act 1988 (SA) 18A, 353(4), referred to.
R v Brain (1999) SASR 92; R v Smith (1987) 44 SASR 587; R v C (2004) 89 SASR 270, applied.
R v Penno (2004) 236 LSJS 457, considered.

R v STEWART
[2007] SASC 167
Court of Criminal Appeal: Anderson, Layton and Kelly JJ
ANDERSON J:
Introduction

The appellant pleaded guilty to one count of indecent assault in respect of an incident for which he had earlier been charged with the offence of rape. He also pleaded guilty to two counts of assaulting police and one count of resisting police. All charges arose out of a series of incidents that occurred at more or less the same time.
The sentencing judge imposed one penalty for the offences pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA). The maximum penalty for the assault and resisting police offences are fines of $10,000 or $2,500 respectively or imprisonment for a term of two years or six months respectively. For the indecent assault the maximum penalty is imprisonment for eight years.
The sentencing judge in sentencing the appellant used a starting point of two years and four months imprisonment. He then reduced that by 15 per cent for the guilty pleas thus reducing the sentence to two years. He then fixed a non-parole period of 12 months. He declined to suspend the sentence.
The appellant has appealed against the sentence imposed on the basis that it is manifestly excessive and that the judge was in error in not suspending the sentence. There is a third ground of appeal in respect of which leave was given by Perry J on 14 February 2007. The grounds of appeal were amended to include a further ground:
The appellant seeks leave to present fresh evidence as to the deteriorating medical condition of his partner and will seek to rely upon that and her resulting inability to care for her seven children by the appellant as an additional ground of appeal.
I will deal with the question of fresh evidence later in these reasons.
Background facts
The circumstances giving rise to the offences arise from a disturbance in a tavern at Elizabeth Downs. As a result of the disturbance some people had been arrested. Police were in attendance and effectively attempting to control the scene but there were members of the public, including those previously involved in this disturbance, still present at the scene.
One of the police officers controlling the scene was a 30 year old female. She was in uniform and on duty at the relevant time.
At some stage she was assaulted from behind by the appellant when he jabbed a finger or fingers between her legs and made contact with her vagina. The contact was sufficiently powerful to allow penetration of her vagina by the finger although against the resistance of her uniform trousers and underwear. The learned judge accepted the submissions of the appellant that any penetration of her vagina was not intended. Nevertheless the appellant's action caused the officer considerable pain and resulted in emotional distress. It was a serious assault on a police officer in uniform and designed to harass and embarrass her in the execution of her duties.
One of the other police officers at the scene was the partner of the female officer attacked. He has also provided a victim impact statement and speaks of the distress this incident caused them both.
After the appellant had been arrested for the indecent assault, he assaulted the same female police officer and also a male police officer. He then resisted another male officer when he was taken to the police station.
The appellant had previous convictions for violence, having been sentenced to a term of imprisonment for three months for assault occasioning actual bodily harm in 1990, as well as being sentenced to 12 months imprisonment with a non-parole period of nine months for robbery and two counts of assault occasioning actual bodily harm in 1999. He was later given a two year suspended sentence for another assault occasioning actual bodily harm in 2000.
The learned judge allowed a discount of 15 per cent for the pleas which he described as being entered "at the eleventh hour". There was no argument advanced as to the appropriateness of this discount.
The appellant is of Aboriginal descent. His offences in the past have been related to alcohol and usually follow from binge drinking. He has been in a relationship with his partner since 1990. That relationship seems to have been a significant restraining influence upon his lifestyle. He has generally been able to keep out of trouble during this relationship.
At the time of sentencing he had been subject to a bail agreement with conditions which the judge described as similar to home detention bail. The judge was impressed by steps taken by the appellant to rehabilitate himself and he indicated that he took this into account in reducing substantially the non-parole period.
The learned judge considered the question of suspension of the sentence but in the final analysis found that no good reason existed for him to suspend the sentence. In particular he said:
For me to have directed that your sentence be suspended would have sent a wrong message to the community in which women police officers are called upon to play an important role.
His Honour went on to say that the non-parole period was considerably less than it might otherwise have been having regard to the interests and ill-health of his partner, but also having regard to the appellant's attempts at rehabilitation. He said:
The non-parole period is considerably less than it might otherwise have been, having regard to the interests (and ill-health) of your partner and to the interests of the seven children, including two stepchildren, who are, to varying degrees, dependent upon you.
Fresh evidence
The appellant now seeks to put before this Court further evidence relating to the medical condition of his partner. The appellant's partner has been diagnosed as having a form of lupus which manifests itself in causing extreme tiredness. The medication that she takes to combat the illness makes her feel ill. Her medical condition has effectively transferred the responsibility of looking after the two youngest children in particular to the appellant. The sentencing judge knew of the appellant's partner's illness but was not aware of the full extent of her disability at the time of sentencing.
The information available to the sentencing judge was contained in a pre-sentence report, in a letter of support, and in the submissions of Mr Coates who appeared as counsel for the appellant at that time.
The pre-sentence report is dated August 2006 and it states:
[Ms B] has been diagnosed with lupus which is a chronic autoimmune disease, symptoms of which include joint pain, extreme fatigue and skin rashes. Her health has deteriorated since the birth of her youngest child but she told me that the defendant has always been very involved in raising their children and so his current commitment is merely a slight increase to his previous level of involvement.
It is apparent that this information was provided by Ms B when she was interviewed for the purpose of the pre-sentence report. Whilst it may not have been a complete account of her illness and disabilities, it nevertheless gave the judge a reasonable picture of her illness and its effects on the family.
In addition, the sentencing judge had before him a report from the Aboriginal Sobriety Group dated 29 August 2006. That report states:
Kelvin's partner [Ms B] has been diagnosed as having a form of Lupus, which has had an effect on her everyday health and makes her very tired and the medication makes her feel ill. This has put the responsibility of looking after the two youngest children in particular on Kelvin.
Kelvin has found this challenging to say the least, but it would be impossible for [Ms B] to resume full responsibility at this point in her condition. She simply needs Kelvin to take the major responsibility for caring for the children and a lot of the home duties. Having seen [Ms B] when she is on her medication, she does not have the energy to carry out home duties without Kelvin's help.
This report gave the judge a good indication of the difficulties Ms B was having in dealing with her illness and managing the care of the children.
In his submissions to the sentencing judge, Mr Coates elaborated on this information but he did not say specifically in his submissions anything about the potential for a further deterioration of the condition. Mr Coates’ submissions were made on 24 October 2006. He did not tender any medical report.
The new information
Dr Benson, the general practitioner for Ms B, in her report of 30 January 2007, describes how the illness causes inflammation of joints and other tissues including lungs and the skin. She reports that it is likely that the appellant's partner will have to have all her teeth removed which will require hospitalisation for some time. This report was not before the sentencing judge.
In her report, Dr Benson says that Ms B's condition has deteriorated markedly in the six months prior to the date of the report, that is, from the end of July 2006. She describes that it is now difficult for the appellant's partner to get out of bed and she cannot pick up her three year old child and needs the other children to assist with housework and shopping generally.
In addition, the report indicates that Ms B has developed severe migraines that cause nausea and vomiting. As a result of her condition Ms B became depressed and is taking medication for that. Dr Benson says that if her condition deteriorates any further she will certainly be unable to care for the children and they may need to be removed from her care, which would likely result in their being separated. The two eldest children have already been sent interstate to school.
The report from Dr Benson dated 30January 2007 was before Perry J when he granted leave to the appellant to make an application to this court to call fresh evidence. When the appeal commenced, counsel for the appellant sought to provide further information, namely, a further report from Dr Benson dated 13 March 2007 and an affidavit from Ms B dated 19 March 2007. Both related to her medical condition and its progress. The affidavit specifically referred to the difficulties Ms B was encountering in looking after the children.
The court received that information on the basis that it would later rule on whether it would allow fresh evidence on this appeal.
The affidavit from Ms B confirms that her condition has been getting worse "especially since late last year". She indicates the difficulty she has in performing all household tasks and including her interaction with the children. She also says that she has been depressed. She says that she is not able to properly look after the children and has gone to the extent of talking with her partner and doctors about putting the children into care.
The further report from Dr Benson indicates that Ms B's condition has deteriorated since November 2006. Dr Benson says that Ms B is currently deteriorating because she is stressed and because she is unable to have the appropriate treatment. This report is confirmatory of further deterioration in Ms B 's condition.
The law relating to fresh evidence
In R v Brain (1999) 74 SASR 92 at [86] Doyle CJ said:
On an appeal against sentence, the Court may receive fresh evidence if that evidence puts before the Court facts which existed when the sentence was passed, but were not known to the sentencing judge: R v Smith (1987) 44 SASR 587 at 588 King CJ.
In Smith, King CJ said at 588:
The proper purpose of fresh evidence on an appeal against sentence is to bring before the court facts which were in existence at the time of the imposition of sentence but were not known to the sentencing judge or to explain facts which were before the sentencing judge so as to put them in a new light.
Mr Coates, in his submissions, emphasised the decision of the Full Court in R v Penno (2004) 236 LSJS 457. He relied on that decision because he submitted that the circumstances considered in that matter were very similar to the present case. Penno was of course a case on its own facts and so far as the law was concerned it restated the principles earlier enunciated in Smith and in Brain. It also referred to the decision of the Full Court in R v C (2004) 89 SASR where the relevant authorities were canvassed in detail by Doyle CJ. Doyle CJ said at 32:
That survey of the case law indicates that usually evidence of events occurring after sentence is passed is incapable of demonstrating an error by the sentencing judge that would enliven the power to set aside a sentence as erroneous, in exercise of the power conferred by s 353(4) of the CLCA. However, such evidence may establish that a matter that the sentencing court treated as material is now to be seen in a new light, or has a new significance, as a result of events occurring after sentence that were not anticipated and, usually, could not reasonably have been anticipated. In such cases, because the evidence of matters occurring after the passing of sentence will throw new and significant light on a matter relied on by the sentencing court, the evidence will be admitted and can be acted on. For present purposes it is not necessary to decide whether, in a case in which evidence of facts occurring after sentence is admitted, the court must be satisfied in the light of that evidence that the sentence passed can be said to be erroneous, or whether, having admitted the evidence, the court simply reconsiders the sentence in the light of all the circumstances including the further information: see Brain at [92]-[93] Doyle CJ.
The principles in relation to the reception of fresh evidence, after sentencing, are therefore clear. It becomes a question of how those principles should be applied to the facts in the present case.
Using the test set out by Doyle CJ and King CJ before him, I think that marginally the new material provided to this court does come within the test enunciated, in the words of King CJ in Smith, in that it "explain[s] facts which were before the sentencing judge so as to put them in a new light".
It is my view that the information regarding the further deterioration in the condition of Ms B comes within that test. I have decided therefore that the evidence in the form of the two medical reports from Dr Benson and the affidavit from Ms B passes the test for fresh evidence after sentencing and should be admitted.
Therefore, with the material having been admitted, this court should reconsider the sentence having regard to the further information and determine whether a different sentence should have been passed pursuant to s 353(4) of the Criminal Law Consolidation Act1935 (SA).
The relevant events which the sentencing judge took into account in reducing the non-parole period considerably are first, the ill health of the appellant's partner and secondly, the interests of the children. The further information provided is, in my view, an extension or elaboration of the information which the sentencing judge took into account. It is not such, however, to cause me to re-sentence.
It is my view that the information regarding the health of the appellant's partner is not all that different but perhaps available in somewhat more detail than the information which was available at the time the learned judge sentenced the appellant. The learned judge knew of the condition, knew that it had deteriorated and knew how it affected Ms B 's everyday activities. In particular he knew that it was impossible for Ms B to properly care for her children. They were the factors his Honour took into account from the comments made by him and set out earlier at [16].
In this case the sentencing judge properly considered the topic of whether it was a relevant factor in sentencing the appellant to take account of his partner's ill health. Moreover, as the respondent contends, the evidence is still to some extent speculative as to what might happen in the future regarding her health.
Conclusion
The appellant's actions were foolhardy and irresponsible and caused considerable discomfort and embarrassment to a police officer. As I indicated earlier she and other police officers went to the hotel to assist to quell a disturbance there. The learned judge is quite correct in my view, in his comments, that it would send a wrong message to the community if an incident such as this was dealt with by a suspended sentence.
The question is whether the further information by way of fresh evidence is sufficient to either find good reason for suspension or for reducing the non-parole period. The learned judge did take into account the ill health of the appellant's partner and indicated that that aspect along with others was instrumental in his reducing the non-parole period. He specifically said that non-parole period was considerably less than what it might otherwise have been.
The non-parole period fixed in all the circumstances is lenient. It is my view that the element of deterrence to other members of the community who might be minded to interfere with a police officer in the course of his or her duties, outweighs the personal considerations in this matter even if the further evidence is taken into account. I would therefore not reduce the non-parole period.
I have indicated that the judge was correct in his assessment that there was, at the time of sentencing, no good reason to suspend the sentence. Having regard to the additional information it is my opinion that it is still not sufficient to suspend the sentence.

I would therefore dismiss the appeal.
LAYTON J.
This is an appeal against sentence. The appellant pleaded guilty to one count of indecent assault, two counts of assault police, and one count of resisting arrest. All of the offences were committed on the one occasion and the sentencing Judge imposed one penalty for the offences pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA). The sentencing Judge began with a starting point of two years and four months imprisonment, then reduced it by 15 percent for the guilty pleas, with a resultant sentence of two years imprisonment. A non-parole period of 12 months was set. The sentencing Judge declined to suspend the period of imprisonment.
There are three essential grounds: First, that the total sentence was manifestly excessive; secondly that the sentencing Judge erred in not suspending the sentence of imprisonment; and thirdly that the sentence should be varied by reason of fresh evidence sought to be advanced. The fresh evidence concerned the significant deterioration of the health of the appellant’s partner and the resultant inability of her to appropriately care for their seven children.
The circumstances of the offending are appropriately set out in the remarks of the sentencing Judge. The relevant passages as to the circumstances of offending are as follows:
On 25 September 2004, shortly after there had been celebrations of the victory of Port Power in the AFL Grand Final, you involved yourself in an unpleasant disturbance and confrontation with the police outside the packed Midway Tavern at Elizabeth Downs. A male had been assaulted and was lying on the ground injured, and some people had been arrested. The police were moving people on and directing them to leave the area. There was reluctance to leave on the part of many alcohol-affected patrons, many of whom had become aggressive and abusive towards police.
The person who became the principal victim (and the one whom you indecently assaulted) was a 30-year-old woman police officer. She was in uniform and on duty at the time. She was one of the several police officers trying to restore order. At one stage she saw you return to the area which you had previously been told to leave. She found it necessary to warn a female patron who had been abusive, that unless she left the area, she would be arrested.
The principal victim (the woman police officer) took up a number of defensive positions, being aware of the need to take steps for her own safety, and she acted in accordance with police practice and her duty. You then, unexpectedly, came up to her from behind and jabbed her between her legs in a kind of groping action striking her forcibly in the region of her vagina.
I accept, for sentencing purposes, that any penetration of her vagina was not intended by you. Furthermore, the offence to which you pleaded guilty is indecent assault, and not rape or attempted rape. However, the conclusion is inescapable that, in your drunken state, you intended to grope her, not for the purpose of your own sexual gratification, but for the purpose of embarrassing her and exercising a measure of power over her. As it happened, and the issue of penetration aside, the thrust towards the area of her vagina, in itself, caused her pain and, understandably, resulted in severe emotional victimisation.
The assault and violent behaviour which you engaged in continued after the events just described and you committed the offences of assault police and resist arrest.
An aggravating circumstance of the crime of indecent assault is that your principal victim, as you must have well-appreciated, was a woman police officer acting in the course of her duty. The sentence to be imposed for this crime must operate so as to provide police officers acting in the course of their duty with a measure of protection and so as to emphasise the notion of deterrence (individual and general).
It must be said that your criminal conduct, as just described to me, was serious. The fact that you were grossly affected by liquor is certainly no excuse.
So far as the circumstances of the offence are concerned, it is clear that the sentencing Judge accepted for the purposes of sentencing that from the perspective of the appellant, in the circumstances of the case, the offence was more a crime of violence than a sex offence. At the same time the sentencing Judge acknowledged that this would not have been discernable to the police officer who clearly felt violated and had a severe emotional response as detailed in her Victim Impact Statement. As the sentencing Judge indicated:
The level of victimisation was high. Your principal victim, understandably, felt violated both as a woman and as a police officer. Your crime has severely affected her personal life, her family life and her life as a career police officer. An injury to her right knee caused her pain, necessitated treatment and caused her some anxiety for a time.
The sentencing Judge noted the Antecedent Report and that the appellant was a 37 year-old Aboriginal man who had no previous convictions for sex offences, but he did have previous convictions for crimes of violence.
The first relevant conviction was for assault occasioning actual bodily harm in 1990, committed some 15 years earlier for which he was imprisoned for three months. The second offence was robbery in company, committed some five years earlier on 15 April 1999, for which he was imprisoned for 12 months with a non-parole period of nine months. The third set of offences were assault occasioning actual bodily harm and entering a building/land with intent, committed approximately four years earlier, for which he received a two year suspended prison sentence.
The antecedent history of Mr Stewart, apart from the three previous convictions for offences of violence, has overwhelmingly concerned driving and motor vehicle offences. He has a significant alcohol problem. It is noted that his current partner, Ms B, who is the subject of the application for fresh evidence, was regarded by the sentencing Judge as having been “a good influence upon [his] life since 1990” but that sadly the appellant had let her down by the commission of alcohol-related offences.
The sentencing Judge also noted that from the time of this offence in 2004, the appellant had been subject to and complied with a Bail Agreement similar to Home Detention for more than two years, and there had been no issue with intoxication during that period.
The sentencing Judge noted that the appellant was not entitled to the leniency given to a first offender, and gave a discount of only 15 percent for the plea “at the 11^th hour”. The sentencing Judge also referred to the “expressed remorse and contrition and for insight manifested by [him]”.
The sentencing Judge when faced with these matters, in my view, reached an appropriate conclusion, and indeed a merciful one, as to the period of imprisonment and non-parole period. In relation to the question of a suspension of sentence, likewise the sentencing Judge reached a conclusion open on the material before him.
With regard to the suspension of sentence His Honour indicated:
‘Good reason’ does not exist for me to order that your sentence be suspended. I need not repeat all the reasons for my decision not to exercise my discretion in your favour; they were referred to in what has been said to you this morning. For me to have directed that your sentence be suspended would have sent a wrong message to the community in which women police officers are called upon to play an important role.
Of the greatest significance in this case has been the application to file fresh evidence.
Application to file fresh evidence
The fresh evidence sought to be tendered consisted of two medical reports from Dr Jill Benson dated 30 January 2007 and 13 March 2007, together with an affidavit of the appellant’s partner, Ms B dated 19 March 2007. The essential argument was that the fresh evidence concerned a situation that had occurred after the sentence was passed, and which shed a light on matters which were relied on by the sentencing Judge, which were not anticipated and which would otherwise affect the sentence. In particular, the material concerned the appellant’s partner and the dramatic deterioration of her condition, and its impact on both herself and, importantly, their seven children.
In order to put the fresh evidence in perspective, I will set out what the sentencing Judge had before him on this topic at the time of sentence.
The information before the sentencing Judge with regard to the health of the appellant’s partner, Ms B, has three sources: The Pre-Sentence Report previously referred to; a reference from the Aboriginal Sobriety Group dated 29 August 2006; and submissions from counsel for the appellant.
The Pre-Sentence Report contained the following information relevant to the health of Ms B:
·That the appellant and his partner had five children between them aged between 2 and 13, and that in addition Ms B had two older children, then aged 17 and 18;
·Ms B had been diagnosed with Lupus, a chronic autoimmune disease, the symptoms of which included joint pain, extreme fatigue and skin rashes;
·Ms B reported that “her health has deteriorated since the birth of her youngest child, but she told me that the appellant has always been very involved in raising their children…”.
I note that this information which was given by Ms B at a time when her son was in hospital, having suffered an injury which required surgery. This may have resulted in her giving incomplete information about her condition and her ability to cope.
The Aboriginal Sobriety Group reference of 29 August 2006 contained the following information:
Kelvin’s partner [Ms B], has been diagnosed as having a form of Lupus, which has had a effect on her every day health and makes her very tired and the medication makes her feel ill. This has put the responsibility of looking after the two youngest children in particular on Kelvin.
Kelvin has found this challenging to say the least, but it would be impossible for [Ms B] to resume full responsibility at this point in her condition. She simply needs Kelvin to take the major responsibility for caring for the children and a lot of the home duties. Having seen [Ms B] when she is on her medication, she does not have the energy to carry out home duties without Kelvin’s help.
(AB 42)
When submissions were made by counsel for the then defendant, now appellant, before the sentencing Judge on 24 October 2006, the following matters were drawn to the Judge’s attention:
Your Honour will see from the pre-sentence report, Mr Stewart’s partner suffers from lupus and has been diagnosed with that condition. It impacts quite heavily on her day-to-day activities, and your Honour can imagine, with seven children, even in full health, looking after seven kids is difficult, at the best of times.
…
I say, in the context of having a wife with a serious diagnosed condition that impacts her daily ability to look after seven children, ageing in range from the teenagers at the specialist school down to the two-year-old, that is something that takes it outside the ordinary range and would have an impact if you take away both the breadwinner, but also her main support. Bearing in mind Mr Stewart doesn’t have any other family in South Australia, coming from New South Wales, there is not an extended family network in South Australia that they can turn to, in the same way that an Aboriginal family might usually, and I say, in that regard, the effect of immediate imprisonment on the children, particularly, is something that would operate, the effect being greater than what might be ordinarily expected.
The sentencing referred to the condition of the appellant’s partner in the following terms:
The non-parole period is considerably less than it might otherwise have been, having regard to the interests (and ill-health) of your partner and to the interests of the seven children, including two step-children, who are, to varying degrees, dependent upon you.
I turn now to the nature of the fresh evidence sought to be tendered.
Dr Benson report – 30 January 2007
The new information that was not available before the sentencing Judge included the following:
·In the last six months, the condition of Ms B has deteriorated markedly. She now finds it difficult to get out of bed in the morning because of stiffness and has pain all day;
·She has also developed depression for which she is taking medication, and irritable bowel syndrome that causes abdominal pain;
·There is concern about Ms B’s ability to continue to look after the children. “If her condition deteriorates any further she will certainly be unable to care for the children and they may need to be split up and go into care as she has no-one else here to help”.
Importantly, I note that the diagnosis of depression was made on 21 November 2006, being after both the sentencing submissions and also the date of sentencing.
Dr Benson report – 13 March 2007
In this report, further information included the following:
·Depression can be part of the syndrome of lupus and it can have an effect on the brain. Since November 2006 Ms B has been very depressed and has needed to take antidepressants;
·Ms B is taking Efexor for her depression and Voltaren for her arthritis. Other medication has made her nauseated or sleepy, and since she is currently the sole provider for her children she decided that she cannot afford to be even more fatigued. This means that she is putting up with a high level of pain and dysfunction every day;
·Ms B is struggling to care for her children. They are her priority. The doctor expressed concern for her own health and said that she was not able to have proper treatment without the appellant’s support. The doctor noted that she should be seen regularly at the Royal Adelaide Hospital, but has cancelled many of her appointments in order to look after the children;
·Dr Benson expressed concern that Ms B will become “more and more ill” as she pushes herself without medication or other treatment;
·Dr Benson indicated that the “condition of Ms B deteriorates each time I see her and certainly since November 2006”. Further, the doctor expresses concern that Ms B may be unable to get the children to school.
In addition, there was an affidavit of Ms B.
Affidavit of Ms B 19 March 2007
Ms B in her affidavit set out a number of matters, including the following:
I have also been getting depression and the medication for that makes things worse. I am struggling to keep it all going.
The problem with the medications I’m given for my pain is that they are serious pan killers that knock you out. With all the kids around, I can’t afford to take too much of the drugs as I can’t really watch the kids when I’m on them, they space you out…It’s very difficult to get myself to the hospital with the kids. I don’t know what I will do with the kids when I need the tests done or if I have to stay in. I have cancelled most of my appointments because I have had to look after the kids.
I have six of the seven children at home, Anthony, 19 has just come back to do year 12. I had sent him over to Victoria. He has had some problems and doesn’t help with the young kids… [The children] are always late for school. I have been to the school to try and explain the situation.
…I just can’t do a lot of the things that kids need… Some days I have trouble even walking or getting up. They are finding it hard enough without their Dad and are confused about that. They have been acting up, particularly Jacob who is eight years old;
Legal principles relating to fresh evidence
The legal principles with regard to fresh evidence have been clearly enunciated and applied in a number of Full Court decisions.
In R v Smith (1987) 44 SASR 587 at 588 King CJ stated:
The proper purpose of fresh evidence on an appeal against sentence is to bring before the court facts which were in existence at the time of the imposition of sentence but were not known to the sentencing Judge or to explain facts which were before the sentencing Judge so as to put them in a new light.
This was in turn applied by the Full Court in R v Brain (1999) 74 SASR 92, where Doyle CJ said at 104:
On an appeal against sentence, the court may receive fresh evidence if that evidence puts before the court facts which existed when the sentence was passed, but were not known to the sentencing Judge …
In a subsequent decision of R v C (2004) 89 SASR 270, after reviewing a number of authorities, Doyle CJ indicated at 279:
… Evidence may establish that a matter that the sentencing court treated as material is now to be seen in a new light, or has a new significance, as a result of events occurring after sentence that were not anticipated and, usually, could not reasonably have been anticipated. In such cases, because the evidence of matters occurring after the passing of sentence will throw new and significant light on a matter relied on by the sentencing court, the evidence will be admitted and can be acted on.
In my view the additional information which has been put forward as being fresh information can correctly be characterised as shedding a new light. Some events occurred after sentence and were not anticipated, and this information is therefore, in my view, admissible as fresh evidence.
In summary, the significant matters which emerge from the fresh evidence are the following.
·First, a deterioration of the lupus condition of the appellant’s partner, compounded by the onset of depression which was not diagnosed until 21 November 2006, being after sentence was pronounced;
·Secondly, the combination of drugs required for dealing with her depression and lupus condition has compromised her health so significantly that it prevents her from adequately caring for her children;
·Thirdly, whilst it may have been anticipated that the older children may have been able to assist in the care of the younger children, that has not eventuated;
·Fourthly, there had not been any indication in the material before the sentencing Judge of any risk of the children having to be put into care as a consequence of difficulties in the appellant’s partner continuing to care for the children;
These additional features were clearly not matters before the sentencing Judge at the time when he was considering the non-parole period. This is best demonstrated by his understated reference to the interests and ill-health of the appellant’s partner, as set out earlier.
In my view these additional factors should be taken into account in a similar manner to the way in which the Full Court in R v Penno (2004) 236 LSJS 457 considered appropriate. Although that was a case with a different factual background, nevertheless there are some close similarities. Gray J, with whom Nyland J agreed, stated at page 468:
[54] It has also been established that the discretion to adopt a merciful approach to sentencing should only be used in circumstances where weight should be given factors which are ordinarily not regarded as relevant mitigating circumstances. For example, the principle of mercy is often sought to relieve or compensate for hardship which resulted from the offence or would result from the sentence imposed. In order to demonstrate sufficient hardship in this context, there is need to identify a significant burden to be borne in addition to punishment – for example a substantial economic, social or other disability. In some cases, circumstances personal to a defendant may give rise to the exercise of mercy to relieve excessive hardship.
[55] In the present case, the serious mental health of the appellant’s partner, and the impact this has had and will have on the care of their children can be described as sufficient hardship to warrant a merciful approach to sentencing. A custodial sentence imposes upon the appellant a significant burden having regard to his personal circumstances. For these reasons, a reduced non-parole period should be fixed.

In this case, a further important aspect is the fact that the appellant and his partner, together with their children, are a vulnerable Aboriginal family, and that such families already have significant pressures in their own right.
Conclusion
In my view a similar approach to that expressed in R v Penno, should be adopted in this case. The appellant has already been in custody and served almost six months of the 12 months non-parole period. I am of the view that there should be a reduction of the non-parole period, having regard to all of the circumstances. I consider it should be reduced from a period of 12 months to seven months, which would mean that he will shortly be eligible for parole. In the meantime, and before any release on parole, appropriate support arrangements can be made for both the appellant and his family. I am also fortified in taking this approach by matters contained in the very favourable references from the Coordinator Adelaide CDEP, a TAFE lecturer, the Aboriginal Corporation of Employment and Training Development and the Aboriginal Sobriety Group. Each of these references refer to his hard work, high standards, his enthusiasm, supervisory skills, as well as his leadership skills.
Therefore, I would allow the appeal and vary the appellant’s sentence to reduce the non-parole period imposed to seven months.
KELLY J: I agree that this appeal should be dismissed and with the reasons given by Anderson J.